Karnataka High Court
Ramesh @ Mahesh @ Rajesh vs The State Of Karnataka on 11 June, 2013
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF JUNE 2013
BEFORE
THE HON'BLE MR.JUSTICE B.V.PINTO
CRIMINAL APPEAL NO.881/2011
BETWEEN:
RAMESH @ MAHESH @ RAJESH
S/O NARAYANAPPA
AGED ABOUT 32 YEARS
C/O RADHAMMA'S HOUSE No.672
13TH CROSS, KEMPEGOWDA MAIN ROAD
BHEL LAYOUT, RAJARAJESHWARINAGAR
BANGALORE
NATIVE PLACE AT MARASHANAHALLI
CHIKKABALLAPURA DISTRICT.
... APPELLANT
(BY SRI.S.MUNIBYRE GOWDA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY RAJARAJESWARI NAGAR POLICE
BANGALORE CITY.
...RESPONDENT
(BY SRI.G.M.SRINIVASA REDDY, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 2.8.11
PASSED BY THE P.O., FTC-VIII, BANGALORE IN S.C.NO.992/10
- CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 307, 326 OF IPC AND THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO R.I. FOR A PERIOD OF 7 YEARS AND
A FINE OF RS.2,500/- FOR AN OFFENCE P/U/S 307 OF IPC AND
THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I.
2
FOR 5 YEARS FOR AN OFFENCE P/U/S 326 OF IPC AND A FINE
OF RS.2,500/- AND IN DEFAULT OF PAYMENT OF FINE, HE
SHALL UNDERGO S.I. FOR ONE YEAR. BOTH SENTENCES SHALL
RUN CONCURRENTLY.
THIS CRIMINAL APPEAL COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment dated 02.08.2011 passed by the Fast Track Court-8 at Bangalore City in S.C.No.992/2010 convicting the appellant for the offence under Section 307 and 326 IPC and sentencing him to undergo rigorous imprisonment for a period of 7 years and to pay a fine of `2,500/- for offence under Section 307 IPC and to undergo rigorous imprisonment for 5 years and to pay a fine of `2,500/- for the offence under Section 326 IPC with default clause of imprisonment for one year.
2. It is the case of the prosecution that on the intervening night of 18.04.2010 and 19.04.2010 at about 1.00 a.m. in the house bearing No.672, 13th Cross, Kempegowda Main Road, BHEL Layout, Rajarajeshwarinagar, within the limits of 3 Rajarajeshwarinagar police station, the appellant with an intention to commit the murder of his wife Smt.Sowmya, when she refused to give the money which was earned by her through illegal activities assaulted her on her back, neck elbow, ears and both hands by means of a chopper (machhu) and caused grievous injuries and attempted to commit the murder of Smt.Sowmya and thereby the appellant is alleged to have committed an offence under Section 307 IPC. Further, on the aforesaid date, place and time, the appellant has caused grievous hurt to Guru by assaulting him on his right hand by means of a chopper and caused grievous bleeding injuries when he tried to rescue Smt. Sowmya and thereby the appellant is alleged to have committed an offence under Section 326 IPC.
3. The prosecution in order to prove the case has examined PWs.1 to 15 and got marked Exs.P1 to P19 and produced MOs.1 to 8. The defence of the accused was one of total denial. However by the impugned judgment, the learned Sessions Judge found the appellant guilty of the 4 offence under Section 307 and 326 IPC and sentenced him as aforesaid. The convicted accused has filed this appeal.
4. At about 4.30.a.m. on 19.04.2010, the Rajarajeshwarinagar Police recorded the statement of one Shanthamma W/o Nagaraja, resident of R.R.Nagar. In the said complaint, it is stated that she is residing along with their family in the house of one Puttaraju on tenancy basis since the last four years. She is working in the Health Department in Bangalore and her husband Nagaraja is working in the Water Supply Company near Ideal Homes at National View Public School Compound. They have got a daughter by name Sowmya, aged 22 years and a son named Kumar, aged about 20 years. Her daughter Sowmya was working in the garments factory and at that time, she loved one Mahesh @ Rajesha and on coming to know about it, she got their marriage solemnized in the Gali Anjaneya Temple. Mahesh @ Rajesha who is the accused herein, was a lorry driver and he was residing in their house but thereafter, he was not going for work at all. She advised him and bought a house for rent in 5 Marappa Layout. The accused brought his sister to his house and both her daughter and the said sister of accused by name Prabha were working in the garments factory. After some time, both the husband and wife quarreled with each other and thereafter, they went to Bomannahalli and remained there. It is stated in the complaint that her daughter became pregnant and hence, both the accused and her daughter came back to the house. The accused was forcing her daughter to give a sum of `70,000/- to purchase a lorry. Her daughter delivered a male child and immediately thereafter, both her daughter and the accused made a house in Mutturayanagar and they started residing there separately. The accused had sold all the ornaments given to her daughter and has used it for his own use. The accused was not working and he was sending his wife i.e., the daughter of the complainant for illicit activity in and around the Majestic and Market area and he was only bringing her back which fact she came to know after about 6 months from one Gowramma. She advised her daughter 6 not to indulge in such activity and to lead a moral life. Thereafter, she purchased a sewing machine and gave the same to her daughter. In the meantime, her daughter delivered a female child. It is further stated in the complaint since about 7 months her daughter and accused were residing in the house of one Radamma in BHEL Layout. Her son-in-law was sending his wife for illicit activity even from the said house and for about 4 to 5 days prior to the date of complaint, both her daughter and son-in-law were coming to her house in an auto and were counting the money. There was a frequent quarrel regarding collection made in the illicit activity by her daughter. It is stated that on 18.04.2010 at about 2.00 a.m., when she was in the house, her grand son by name Darshan came along with the police to her house and informed that his father has assaulted his mother at about 1.00 a.m. midnight and thereafter, he (accused) went away along with his sister. The complainant thereafter went along with the Hoysala police to the house of her daughter and thereafter, she came to know that her 7 daughter has been shifted to the Manipal Hospital and when she went to the hospital, she came to know that her son-in-law, the accused had assaulted her daughter in connection with the collection of amount made through the immoral activity. It is brought to her notice that the accused had assaulted her daughter on her neck, back, elbow, ears and hands by a chopper and he also assaulted one auto driver Guru when he had intervened between the couple. Hence, she has requested for suitable action against her son-in-law. The Rajarajeshwarinagar police on receipt of the above complaint registered the same in Crime No.82/2010 for offences under Section 324, 326 and 307 IPC and commenced investigation.
5. PW.14-Gnanamurthy, ASI of Rajarajeshwari Nagar Police Station, after registration of the above case, transmitted the FIR to the Court and also intimated to his superior officers. Thereafter, he visited the scene of occurrence and in the presence of PW.5 and others drew the spot panchanama as per Ex.P2 and also took the photograph of the scene of occurrence. Thereafter, he 8 handed over the further investigation to PW.15- P.M.Yogendra Kumar-Inspector of Police. On taking over investigation on 19.4.2010, PW.15 secured the presence of the accused and arrested him. He recorded the statements of the injured-Guru-PW.3 and also recorded the statement of Sowmya-PW.2 and the statements of PW.4-R.K.Radhamma. PW.15 also recovered the weapon- MO.6-Chopper and after obtaining the opinion from the medical officer regarding the assault, filed the charge sheet against the accused-appellant.
6. PW.1-Shantha, is the complainant. She has reiterated the version in the complaint and also stated that as a result of assault by the appellant, her daughter Sowmya-PW.2 has sustained injuries on her neck and other parts of the body. She has stated that when PW.2 was taken to the Manipal Hospital, they had opined that PW.2 is on the verge of death and that she was not in a position to speak. Therefore, her complaint was taken by the police, which is identified by her as Ex.P1. In the cross-examination, it is suggested that she is deposing 9 falsely at the instance of PW.2, her daughter. It is also suggested that the accused was not harassing her for money for the purpose of purchasing the lorry and that she is deposing falsely in this connection. However, the said suggestions have been denied by PW.1.
7. PW.2-Smt.Sowmya, is the injured. She has stated in her evidence that the accused is her husband and that he was working in the lorry, which is loading sand. However, when he was in the house he was not doing any work. Whereas she was working in a Garments factory. The accused learnt driving the vehicle at the instance of her mother. Thereafter she had purchased a lorry. However, they sustained loss. In the meantime; they were staying in Bommanahalli, in a rented house. It is in the evidence of PW.2 that on 18.4.2010 at about 10.30 p.m. when they were taking food, accused had consumed alcohol and she was also given the same. Suddenly, accused remembered about the mixies given to PW.3-Guru and hence he asked to return the money meant for the said mixies from PW.3. At that time, PW.2 10 phoned up to PW.3 and called him. PW.3 came to their house and gave her a sum of `4,500/- which was taken by him from her. She had handed over the said amount to the accused. After taking food, both the accused and PW.3 were watching the TV in the house. At about 1 p.m. when she came back from the toilet, the accused stabbed her on her stomach by means of a knife and she sustained injuries on her stomach. Thereafter, the accused assaulted her by a chopper on the backside of her neck, left ear, right hand and she sustained injuries over the said parts of her body. Her index finger in the right hand was cut. Her left thumb was also severed, the same was stitched in the hospital. At the same time, PW.3-Guru intervened between her and her husband and the accused assaulted Guru on his right hand by means of a chopper. She lost her conscience and when she regained conscience, she was in the Manipal Hospital. She has identified the photographs taken out from the scene of occurrence containing blood stains, so also MOs.1 to 4, which belong to her. In the cross-examination, it is elicited that she 11 was working in the Garments factory since five years prior to the date of incident. She came into contact with the accused in Javaregowdanadoddi, accused was obstructing her for going to Garment's work. He was working as a cleaner in a lorry, transporting sand. After the marriage, he learnt to drive the car. Her mother brought a car for him. It is admitted by her in the cross-examination that six years after the marriage, she started prostitution. She was doing the said work in the Majestic area near Janata Bazar. She was going to work at 12 noon and coming back at about 8 p.m. Her house is in the BHEL layout. Her mother was not aware of the nature of her work; accused was looking after the children in the house. She was earning `500/- to `1,000/- per day. It is suggested that a case of prostitution was registered in Kalasipalya Police Station, Bangalore. But she has denied the same. It is stated by her that the accused was himself sending her for the said work. He was instigating her to go for prostitution and bring money. It is in her evidence that, PW.3 is a friend of her husband. PW.3 was coming to the house and 12 was running an Auto. PW.3 was leaving her to the house after her work over the day, in his Auto. Accused was habituated to drinks. On the night of the incident, a quarrel began in respect of money given to PW.3 for purchase of mixies. It is suggested to PW.2 that on the night of incident, she was sleeping with PW.3. However, the said suggestion has been denied by PW.3. It is further suggested that on seeing the said sight, the accused got enraged and assaulted her. PW.2 has denied the said suggestion also. It is further suggested that the weapon- MO.6 was introduced for the purpose of the case and that a false case has been filed against the appellant in order to do away with him at the instance of PW.3. However, the said suggestion has been denied by PW.2.
8. PW.3-Guru is also an injured witness in this case. He has also stated regarding his presence at the time of occurrence in the night of 18/19.4.2010 in the house of PW.2. He has also stated regarding payment of `4,500/- by PW.2 to him for purchasing mixies and that on 13 the night of the incident he had brought the money and given it to PW.2, who in turn has handed it over to the accused. He has stated that after taking food, himself and accused were watching the TV and at that time, PW.2 and accused started quarrelling. At about 11.30 p.m. accused assaulted PW.2 on her shoulder. He intervened and therefore he has also sustained injuries. Thereafter, PW.2 was pushed to one room and door was closed. Accused thereafter left the place after assaulting his wife-PW.2 and by taking his daughter along with him. He was shifted to the Manipal Hospital, so also PW.2 by the police. In the cross-examination, it is suggested that a false complaint has been given against the accused, which suggestion has been denied by PW.3. It is elicited in the cross- examination that when accused went to assault PW.2, he was in the bathroom. It is further elicited that he has not seen accused assaulting PW.2.
9. PW.4-R.K. Radhamma, is the owner of the house in which the incident has happened. PW.5- Guruprasad, is the signatory to Ex.P2-Spot Mahazar. 14 PW.6-Raghavendra is the neighbour, who on hearing the sound from the house of the appellant came near the house. He saw PW.2 fallen on the ground. She was not in a position to speak. PW.2 was bleeding on her person. Thereafter, police came and removed PW.2 to the hospital. Accused was not there when he came near the scene of occurrence.
10. PW.7-Peter is the photographer, who has taken the photographs of the scene of occurrence as per Ex.P3, which comprises of 7 photographs.
11. PW.8-Gangadhar, is the ASI, who has secured the accused on 19.4.2010 and produced them before the IO.
12. PW.9-C. Erabasavegowda, is the constable of Hoysala vehicle, who at about 1.45 p.m. in the midnight of 18.04.2010 came near the scene of occurrence on receipt of information through wireless and shifted PWs.2 and 3 to the hospital.
15
13. PW.10-Shivalingaiah, is the head constable, who had assisted in the investigation.
14. PW.11-Chennaboregowda, ASI of Rajarajeshwari Nagar Police Station, has arrested the accused and thereafter recorded the voluntary statement of the accused, seized the clothes worn by the accused at the time of incident through Mahazar-Ex.P8; MO.7 is the T-Shirt and MO.8 is the Pant worn by the accused. The said clothes have been referred for investigation by the Forensic Science Laboratory.
15. PW-12-Dr.Prakash, is the medical officer of the Manipal Hospital, Bangalore, who has stated that he has examined PW.2 on 19.04.2010 at about 1.50 a.m. He has stated that PW.2 has sustained six injuries including the injury on the hind portion of the neck and also the stab injury on the right side of the chest. He has opined that injury Nos.3 to 6 are grievous in nature. He has further stated that PW.2 was not in a position to give a statement while she was first brought to the hospital. PW.12 has also 16 stated that on the same day, he has examined PW.3-Guru, who had also sustained an injury on his right wrist, which was grievous in nature.
16. PW.13-Narayana, has turned hostile to the case of the prosecution.
17. PW.14-Gnanamurthy, is the ASI of Rajarajeshwari Nagar Police Station, who has conducted the investigation initially and handed over further investigation to PW.15 who completed the investigation. He has also produced Ex.P18-FSL report on its receipt from the Forensic Science Laboratory, Bangalore.
18. It is from the above evidence of the prosecution witnesses that the learned Sessions Judge has found the accused guilty and convicted him as aforesaid.
19. Heard Sri S. Munibyregowda, learned Counsel for the appellant and Sri G.M. Srinivasa Reddy, learned HCGP for the Respondent/State.
17
20. Sri S. Munibyregowda, learned Counsel for the appellant submits that there is no evidence to show that the accused has assaulted PW.2 and that a false case has been registered. He further submits that the appellant alleges that there was an illicit relationship between PW.2 and PW.3 and that after finding PWs.2 and 3 together in the night, the appellant had lost the control over his senses and has assaulted PWs.2 and 3. It is further submitted by him that the accused has suggested that on seeing such a fact he got a shock and hence out of sudden provocation he has assaulted the injured. Hence, he submits that the appellant may be acquitted.
21. Sri G.M. Srinivasa Reddy, learned HCGP for the Respondent/State, on the other hand submits that in the entire evidence of the prosecution witnesses, there is nothing to indicate that PWs.2 and 3 had illegal intimacy between them. PW.3 is an auto driver and the friend of the appellant. However, it is the case of the prosecution that on the night of the incident both PWs.2 and 3 were assaulted by the appellant in connection with the money 18 payable by PW.3 to PW.2, which PW.3 had taken from PW.2. Hence, he submits that the evidence of PWs.2 and 3 is clear and cogent. The said version of PW.2 and PW.3 is further supported by the evidence of PW.12 who has also stated that both PWs.2 and 3 have sustained injuries. It is further submitted by him that, PW.9-C. Erabasavegowda is the constable who has come to the scene of occurrence immediately after the incident and he has seen both PWs.2 and 3-injured. Under the circumstances, he submits that the prosecution has rightly proved the evidence against the appellant for the offences under Sections 307 and 326 of IPC and the said Judgment of conviction may be upheld by dismissing the appeal.
22. From the evidence on record and the materials produced by the prosecution, it is seen that PW.2 is none other than the wife of the accused. Both of them were living as husband and wife in the house, where the incident has occurred. The appellant has not suggested that he was not living in the said house. On the other hand, his suggestion is to the effect that on seeing PWs.2 19 and 3 in close intimacy, he had assaulted both of them. Therefore, by his own suggestions, the appellant has proved that he was living along with his wife-PW.2-Smt. Sowmya. It is the case of the prosecution that on the night of the incident, accused started quarrelling with his wife-PW.2 and during the quarrel; he has assaulted her by means of the chopper-MO.6. PW.3-Guru, though in his cross examination has stated that at the time when the appellant assaulted on PW.2, he was in the bathroom, the attending circumstances indicate that on the night of the incident, PW.2 has sustained injuries and as soon as PW.3 came out of the bathroom; he was also assaulted by the appellant by means of the weapon-MO.6. Under the circumstances, the evidence of PWs.2 and 3 clearly establish that both PWs.2 and 3 have sustained injuries. At that time, the appellant was found in possession of a chopper. Further, the FSL report indicates that all the items namely the shirt and banian worn by the accused and also the towel and cement bricks found in the house of the appellant were stained with blood. MO.5 is the shirt 20 and MO.6 is the banian belonging to the appellant. The FSL report further indicates that on the night of incident, the clothes worn by the appellant were also blood stained, which indicates that he was present at the scene of occurrence. The FSL report, which is marked as Ex.P18, further indicates that item Nos.1, 3, 5 and 6 are stained with 'B' Group blood. It is not the case of the appellant that he has sustained any injuries in the incident. Further, it is to be seen that the appellant is none other than the husband of PW.2 and there is no reason why PW.2 should depose falsely against her own husband with whom she was leading a matrimonial life. Under the circumstances, I am of the opinion that the finding of the learned Sessions Judge that on the night of 18/19.04.2010 the appellant has caused injuries on PWs.2 and 3 and both of them had sustained grievous injuries is clearly established by the evidence of prosecution.
23. So for as the nature of the offence committed by the appellant is concerned, it is seen by the narration of facts by PWs.2 and 3 that there was no enimity 21 between either accused and PW.2 or between accused and PW.3. PW.3 was a welcome friend in the house of PW.2 and the appellant. The assault by the accused on PWs.2 and 3 erupted suddenly in connection with the cash of `4,500/- lent by PW.2 to PW.3 to purchase mixies. The said quarrel aggravated and the accused suddenly got enraged and assaulted on his wife and on PW.3, when he later interrupted between husband and wife. Under the circumstances, that at no stretch of imagination it can be said that the appellant intended to kill the deceased and that such injuries are likely to cause death. Therefore, the ingredients of offence under Section 307 IPC are not made out and the prosecution has not established that the accused had attempted to commit the murder of PW.2 or PW.3 and therefore, he is entitled to an order of acquittal for an offence under Section 307 IPC.
24. The accused has caused grievous injuries to PWs.2 and 3, as opined by PW.12. Looking at the nature of MO.6-Chopper, which is a lethal weapon, an offence 22 under Section 326 IPC is clearly attracted in respect of the injury on PW.2-Sowmya as well as injury on PW.3-Guru. Hence, the finding of the learned Sessions Judge that the appellant has committed an offence under Section 326 IPC is justified and there is no error or illegality in the order of conviction passed by the Sessions Court insofar as the offence under Section 326 IPC is concerned.
25. Heard Sri S. Munibyregowda, learned Counsel for the appellant insofar as the sentence is concerned. He submits that the trial Court has imposed a severe sentence for a period of 5 years R.I. for an offence under Section 326 IPC. He further submits that the appellant is aged 32 years and that he has got two children and a family, who are depending on him. He also submits that the appellant is in custody ever since from the date of arrest from 19.4.2010. Hence, he submits that leniency may be shown insofar as the sentence is concerned.
26. Sri G.M. Srinivasa Reddy, learned HCGP for the Respondent/State, on the other hand submits that the appellant has assaulted on the neck of his wife and that 23 too in a ghastly manner and that the deceased PW.2 would have succumbed to the injuries. Hence, he submits that adequate sentence may be passed on the appellant for the offence under Section 326 IPC, which is punishable upto imprisonment for life.
27. Having regard to the facts and circumstances, more particularly, the fact that both PWs.2 and 3 and the appellant were drunk at the time when the incident has happened, even according to the admission of PW.2 herself, leniency requires to be shown so far as the sentence is concerned. For the offence committed under Section 326 of IPC in respect of PW.2-Sowmya, the appellant is sentenced to undergo R.I. for three years and to pay a fine of `5,000/-, in default to undergo R.I. for six months. For an offence under Section 326 IPC committed by the appellant in having caused grievous injury on PW.3-Guru, he sentenced to undergo R.I. for two years and to pay a fine of `3,000/-, in default to suffer S.I. for 24 three months. Both the sentences are directed to run concurrently except the default sentences.
28. Learned Counsel for the appellant submits that the appellant is in custody since 19.4.2010. In view of the modified sentence passed herein, the appellant is entitled to be released forthwith, if not required in any other case. Learned Counsel for the appellant further submits that the fine imposed would be deposited forthwith. Hence, the appellant is directed to be released forthwith. One month's time is given to the appellant to deposit the fine amount, from the date he is released from jail, failing which, the trial Court is directed to execute the default sentence.
29. Accordingly, the appeal is partly allowed.
Sd/-
JUDGE prs*/cp*